It’s great to see that Google is quick to call law enforcement to prosecute those who took advantage of its open(!) market. Now I wonder what Google will do about policing copyright infringement on the same market .

In September I wrote a note about how some of the top applications in the Market seemed to be infringing on copyrights (and attempting to hide the fact). Today I went back and searched for “Disney”. I was offered about 350 apps and I am pretty sure that none one of them is endorsed by Disney.[1]

While there is a vast amount of copyright infringement on YouTube, Google is actively working with video content publishers to either compensate them or to take unlicensed content out. This after extensive legal maneuvering.

I’m not sure how policing or licensing deals will be struck for content on the Android Market. Apps are content, but of a different sort. It’s not so easy to scan for infringements. It’s not easy to draw up a compensation contract. The revenue model is ad-based (by and large.)

The fact that there seems to be little activity[2] to filter the material today indicates that it’s not a burning issue for Disney. Could it be because Disney is unaware of the success of Android Market, or could it be that Android Market is not big or successful enough to become a priority at Disney legal?

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You can do the same search in iTunes and get about 120 iPhone apps, though at least half are clearly sanctioned with most of the rest being related to the parks franchise.

There might be activity to police the copyrights as, unlike in September, there don’t seem to be many infringing apps in the top seller or featured sections.

Legitimate question: Does Google have the power to deactivate sideloaded applications, or applications acquired from non-Google-app-stores?

2sk21

Very good point – sideloading would bypass all app-store based security of course.

TomCF

Or is Disney waiting for the damages to pile up before suing?

David Lam

Isn't more like trademark infringement (or passing off of Disney's brands' goodwill) than copyright infringement?

asymco

I did not count how many, but many of the apps actually do use Disney copyrighted materials like characters, images and other content.

rattyuk

OH the wonders of an Open Market… Are Google at all liable?

http://www.noisetech-software.com/Perspectives.html Steven Noyes

My guess is maybe not. Like eBay has found, they are not responsible for what gets sold so long as the react once notified. Google is just providing server space and is not profiting directly from the transfer of application on the market place. Google would point to the actual developer as being liable.

I am sure Google sees it the same way. Going against them is the fact that all their competitors do vet applications.

Ted_T

Considering that Google themselves does ex-post-facto vetting, complete with killswitch and dropping a dime on the developer, I think they'd have a very hard time claiming that they can't police the Android marketplace.

http://twitter.com/davidchu @davidchu

From what I understand, it wasn't google themselves who found the malware, but someone in the Android community who notified them. So other malware apps could still be in the store undetected.

Pieter

The same is possible on every App Store.
No entry check can completely rule out malicious apps.
Your point being?

http://twitter.com/davidchu @davidchu

My point is that Google doesnt have a policing system in place. It's a community policed platform. Therefore under US laws, they aren't liable for copyright infringement apps. And it's difficult to know exactly what other types of malicious apps are on the store.

No entry system is perfect, but you can mitigate the existence of malicious apps by denying apps that access certain APIs.

http://www.noisetech-software.com/Perspectives.html Steven Noyes

I was simply stating what would be Google's position. They are not responsible for what developers upload.

This is no different than YouTube. When copyrighted material has been uploaded in the past, YouTube has not been held responsible. They were simply required to remove it once notified.

eBay has had similar court findings.

I believe that Google takes the same stance on the Market Place. Once issues are found their responsibility is to delete it. Likewise, there is some precedence for taking this view.

But there are some differences to applications VS videos. There are millions of minutes of videos loaded up continuously. There are 1,000's auctions happening every day. Google's competition vetts their apps.

So the question of "Is Google liable". The answer is "maybe not."

asymco

This is a good question. This requires a legal opinion.

I can only observe that Apple is strict about avoiding infringement so I assume they are assuming some liability.

http://www.noisetech-software.com/Perspectives.html Steven Noyes

But would it make sense that Google would use their previous understanding of YouTube to guide their legal views of the Market Place?

asymco

Not necessarily. Apps are a new medium. How is infringement defined? How do you even define a deal structure for ad-supported apps that display copied material?

http://www.noisetech-software.com/Perspectives.html Steven Noyes

Application are a very old medium. Even in the phone world they are an old medium but the App Store dramatically changed the distribution model, scale and scope.

From that standpoint, I see Google thinking delivering Apps to phones is no different than delivering video to computers and, as a result, they want to continue on a laissez faire type of distribution.

That said, I am tired of the software market getting a free ride on certification and vetting. Every other product we buy goes through some type of vetting. Even toothpick holders go through more required testing than software.

asymco

Applications are an old medium, apps are a new medium. Apps are a very different art form and the means by which they are discovered, produced, consumed, marketed and policed require significant new insights.

http://www.noisetech-software.com/Perspectives.html Steven Noyes

As a developer, I see "Apps" just being applications with a different distribution model (A genius one BTW). As such, I would think much of what we have learned in the past would apply almost without modification.

Interesting. Google itself was actually third, with eight complaints alleging its own trademarks were being used by some apps in the Android Marketplace. (So, yes, that would be one division of Google complaining about how Google’s trademark is used in a second division of Google—and then Google reporting on Google’s takedown request to ChillingEffects.org.)

davel

I agree. An app is an application. Just because they change the name and perhaps have a new medium for distribution does not change what it is.

If you get music on an LP,CD,cloud it is still music. The music has not changed only the method of delivery has.

Bruce

NFL football teams is another area where it's easy to find violations. and MLB baseball teams as well.

Artem

Sorry, normally I really like the analysis here, but this one seems very biased. Why do you believe that a market for apps has to be policed like this? Why not just let all of these apps run in a sandbox as is always done on the web? What about all of the advantages of a free Market? After all, why not let Disney sue the violators? If every single web app that gets released would need to be vetted by a single authority, we would not have as many apps as we have today.

Why not just say, each system has its own merits?

Ted_T

Artem, let me point you to my answer above — the difference between webapps and the Google marketplace is that nobody has the authority to bring down your webapp, unless it violates the law of the country your server is located in — but even in that case you could decamp to a country with lesser or no internet related laws.

The Google Marketplace on the other hand clearly is regulated or policed or curated — use the word you want — if only ex-post-facto. Claims to the contrary are counterfactual.

Mark

I think he is making a slightly different point. Who controls the access to internet, it is the ISPs, now imagine if ISPs blocked all internet access except to apps approved by them with all the bells and whistles(ease of use, quality checking, content checking etc). In that case would the web have been as big as it is today ?

Yowsers

I think there is a difference between a web app posted individually (open web) and one posted to a market place owned and hosted by a major multinational for-profit corporation.

GOOG is not an ISP, altho from a certain angle in dim light it might resemble one at times. ISPs have always struck me as more akin to a utility (but not the same, of course), while something like GOOG's market place is really a branded commercial venture in a way that ISPs are not. That GOOG holds its market place out like an open 'let the market decide' operation doesn't make it the same as an ISP or the free web. I don't think you can hold the two synonymous. Different rules and standards apply.

Anyway, those are thoughts off the top of my head — maybe I'm not on the right track or on point. Counter arguments welcomed!

Evan

lets dial back to 1995 or is it 1985(not sure) when the web was invented in 1995 by Sir Tim-Berners Lee, lets say the ISP's decided access to an open web was dangerous for their consumers because of malware, identity theft and lots of other bad things. So ISP's then say, we cannot allow consumers access to an open web which has very poor security, anybody can post anything no concern for copyright etc and they decide to create a webstore for webapps and only webapps which agree to list in the ISP webstore will be allowed access by the customers and the rest of the webapps(websites) will be blocked(consumers would be none the wiser or even governments would even care, because the web was just starting out then), that is the point he was making, he was not referring to whether google is culpable or not, they may be culpable, although I am not too sure about legal matters. Would the web have been so large if ISPs controlled access to even the webApps and that were the only way to access websites(webapps)? the web has given us many painful things like malware, identity theft and lots of other bad things, but the good things outweigh the bad things.
Today we talk about openWEB, but back in 1995 if ISPs had throttled it for commercial reasons and for better protecting the consumers, there would be no opernWEB today in 2011. No Asymco either because Asymco sometimes writes good things about android (you do know that Apple blocks all apps containing any reference to android), no Wikipedia too.
Just see how easily wikileaks app was removed by Apple, now the governments of the world cannot destroy wikileaks, how much ever they wish.
So open v/s closed is an eternal debate, both have plus points and negative points.
And the openweb was one of the first reasons why Microsoft became increasingly irrelevant, now that has to be a good thing

So this is more on the lines of a what-IF scenario, the things that we take granted for today like openweb, could never have come about, if people in the past had acted in other ways. I guess ISPs had no way of knowing how powerfully disruptive the web was, if they had known, they would have tried to control it.

http://twitter.com/davidchu @davidchu

Very true. And I would also say that they are trying to control it now. They know that they can't control the web in the PC world, but they are trying to exert their power on the mobile web.

Mark

I second that, web would not have been such a wonderful place, if webapps had to be vetted before being released. There are always two sides to an opinion and stating only one side does not do justice to the other point of view.

asymco

The web is not someone's private property. The Android Market is. Criminal copyright law applies equally to both but there is another body of law that applies between commercial interests: civil law.

http://twitter.com/davidchu @davidchu

"Why not let all of these apps run in a sandbox"

That would kill a lot of the usefulness of an app. Other than A richer UI, apps are great because they can access your phone's camera, GPS, contacts, etc. You can't release those APIs on the web because the web is uncontrolled.

asymco

What bias are you suggesting exists? The post highlights the fact that Android Market is un-policed whereas YouTube is policed. Both are Google's private properties. I ask the question of whether the burden of policing should be borne by the content owner or the merchant in the case of app content. Policing is expensive and it's a burden but it is a necessity for functioning markets of all kinds. I don't see this as a biased opinion.

At the end this becomes an economic discussion (who bears the cost of policing) not about the necessity of policing. Clearly Google believes that the cost (and responsibility) should be borne by the content owner and not by the merchant. This becomes an interesting question when infringement is obfuscated by a new medium like apps.

http://www.noisetech-software.com/Perspectives.html Steven Noyes

Horace,

Both the Market Place and YouTube are "policed". There is no vetting of videos loaded onto YouTube just like there is no vetting of applications loaded on to the Market Place. On YouTube, once a violation is found, Google is responsible to kill it. On the Market Place, on a violation is found, Google is responsible to kill it.

I see Google running the Market Place exactly like YouTube; its just that the copyright holders are not looking yet.

davel

My understanding is that Google has the responsibility to look for pirated materials. The owners of the copyright provide the fingerprints and Google is required to look for those fingerprints.

Artem

Thanks for the reply. The bias I am talking about is between the lines, and one that somehow suggests that a policed market is more effective. Why not think of the market as a large search engine for apps? True, that's not the current implementation, but what if Google were to inject web results into it. Is that so different then?

Just like you, I admire Apple, but I don't agree with their decision to have to approve every single app. I think it's actually really detrimental for the growth of the ecosystem and ultimately stunts that growth. That's the bias that I see — you not fairly discussing (as you usually do!) the many many advantages of an open market, or at least a market where an app is innocent until proven guilty. My company has had about 70 releases of our software on the Android Market in 2 years, and waiting 1-2 weeks for every release would really be a killjoy.

Also, please note that YouTube is 3 years older than the Android Market, so comparing them as far as where the policing implementation works better is not really fair. So let's assume the Market had a better implementation of this?

Another example — web hosting companies are not reviewing everything you upload to them. Should they, because they are hosting it on their servers? Or should they just respond to take-down notices?

Mark Benson

it is more or less free marketing for disney, there are a lot of mickey mouse songs uploaded on youtube and many of them have ads, does not seem to have affected disney's popularity I think.

WaltFrench

I guess so. Still, it's their call, no? As soon as they want to cash in, all they have to do is tell Google their model is a serial infringer, and they clean it up or pay damages for their indifference to Disney's rights?

poke

I think most analysts severely underestimate the value of curation. While having all those apps in one place with one-click purchasing is a huge deal, making software safe to download is perhaps an even bigger deal. I would never dream of downloading the number of apps I do on my iOS devices – and mostly from small, unknown developers – directly from the internet. I certainly wouldn't pay an unknown developer for the privilege of discovering whether their app works as advertised or contains malware. How much of the willingness of iOS users to pay for software comes from the inherent trust established by the curated model?

I really don't get it. 350 apparently copyright-infringing apps in the Android “marketplace” that is of, by and for the benefit of Google, Inc. How is this not Google infringing Disney's copyrights?

I can see that Disney can tolerate some foolishness so that they don't look like baddies, but sooner or later, don't they have the right to say, “remove your infringing crap from your store or pay us $100/download royalties” ?

Yowsers

Were Disney to move against GOOG or the infringers individually, you can be sure a certain section of the blogosphere's commentariat would go ballistic. They would see a thinly veiled conspiracy, and read into it the machinations of a certain major Disney shareholder and board member.

I hope Disney decides to do it during a slow news cycle. We could all use the high drama and entertainment, no doubt.

asymco

Viacom's lawsuit against Google's YouTube infringements did not win them any fans, but in the end they won. I think the law is pretty clear on the matter, now we just have to wait for when it gets applied.

Again, the gist of the article was why it has not happened yet.

WaltFrench

De Minimis Non Curat Lex. I guess Disney doesn't concern itself with trifles, either. Actual damages to Disney have got to be … uhh, de minimis.</>

I get it. But copyrights have to be defended, or, like Kleenex, they end up in the public domain by usage. And the PR impact from Google being ordered to KillSwitch the infringers and/or pay Disney all the past revenues would be likewise trivial if a couple of other major copyright holders also were able to say "enough!" at the same time.

Deno

I guess it hasn't happened yet because Disney did not want it to happen (yet).

I presume that the legal base for a third party claiming Google should remove the materials is pretty thin unless/until they are hired by Disney…

http://twitter.com/alxknt @alxknt

It is well publicised that the founders of Youtube posted the popular network TV shows to their site. This was done under faux user accounts, ignoring copyright and licensing issues, simply to drive traffic to their site.

Also in the iPhone app store there are plenty of apps which rip off IP from others. Take for example all those "soundboard" applications which are just audio ripped from films and Tv shows. Apple has made some effort to remove them, but the responsibility for copyright enforcement always falls on the party who is being wronged.

I think it's unjust to paint this as a problem with the Android marketplace, it's a problem with the whole internet.

rattyuk

The very openness of the Android market makes this kind of problem very much a problem with the Android marketplace. Here's the thing, and we have seen it happening for some time now, Google are claiming openness but really the Google marketplace will move towards the way Apple does things in the future. And the fans will say "great" as this fixes things. While those in the Apple camp will say… But wait isn't this what you guys were complaining Apple was doing.

Consider this. Apple has always had a killswitch in the OS. Apple has the ability to pull an app once launched from all handsets. Apple announced this and the Internet was up in uproar. There were articles all over the place saying how Apple doesn't have the right to do this and it's my phone and I've paid for it rants.

Google implemented a similar thing.

However. Google has been the only company out of the two that has actually had to pull the trigger. Apple announced this as an OS feature and got nuked. Google implemented it pretty quietly and yet actually had to use it to protect their users. What does this tell you?

http://twitter.com/davidchu @davidchu

Google is already moving in that direction.

Part of the reason that Google's Marketplace is not up to par with the App Store is because Apps stores are expensive to run. Apple recently announced that they paid out $2 B to developers which means they made about $1 B in revenue. But when you look at profits, they are just above break even from the App Store. That's an expensive, heavily man powered store.

Google on the other hand Is an algorithmic driven company. They prefer to create formulas versus using man power. But certain parts of an App store needs to be curated by people. Formulas can't solve those problems. If Google jumped with two feet into App stores, the costs of running it would quickly eat into their profits and it's a problem because they can't make the money back from selling hardware. They only make money from selling Ads, which we know doesn't monetize as well as charging for software.

Both Google and Apple aren't stupid. Both companies have insanely smart people working there. There are reasons for why they do what they do.

rattyuk

Hmmm so I think you are saying David that the whole of Google's earnings from advertising on Android "a 1 billion dollar a year product line" could be swallowed by their app store?

Or am I reading this wrong?

Deno

Assuming an average on average 100k€/year cost for personell, $1 B/year could pay the salaries for 10.000 people. Not sure how much is the price of technology – computers & internet connection aren't VERY expensive these days, but they aren't for free either…

How many people does Apple really employ in/for "App Store"?

Brenden

Given that Steve Jobs is Disney's largest shareholder and on the Board of Directors, I think it's unlikely that Disney is unaware of the degree to which the Android Market has been successful.